Competition Creditors with the Donatar of Forfeiture.
Lady Saltoun v. E of Dumbarton.
Date: 15 December 1687 Case No. No 36.
Debate, in a competition with a donatar of forfeiture, whether the act 1584 applies only to inferior vassals, or likewise to the immediate vassals of the Crown; not decided,
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A letter from the Lords of the Treasury, in favours of the Earl of Dumbarton, is read, requiring the Officers of State to concur with him in getting that point which he had in debate with the Lady Saltoun, decided in his favours, viz. that the bygone annuities of her liferent should not affect the lands of Saltoun, in prejudice of the King and him as donatar, it being a leading case: And the King founded on the 3d act 1584, that bygone feu-duties and annuals, in cases of forfeiture, are presumed paid.
1688. February 24.—This day, and the two preceding forenoons, were much taken up with the debate betwixt the Lady Saltoun and the Earl of Dumbarton, who was donatar to her son's forfeiture, for the bygones of her liferent, as mentioned 15th December 1687. Alleged, By the 2d act 1584, anent the quinquennial retour, all bygones are presumed to be paid præsumptione juris et de jure, because the rebel and his friends will abstract the discharges to defraud the King, and so lex statuit super præsumpto. Answered, The case of that act is only in subvassals who enter by presentations from the King, and not where they hold immediately of his Majesty, as Saltoun and his mother did. Replied, There is the same parity of reason in both, and therefore it ought to be so extended, otherwise the King by their collusion may be cheated. Duplied, In materia favorabili laws may be extended, but not in materia pænali, odiosa et correctoria, as this is; for which were cited, 1mo, Our own law, viz. act 107th, Parl. 1427, and act 115th, Parl. 1581, that statutes are not to be wrested beyond their precise words; and also Faber. Cod. Sabaud. tit. de leg. et constitutionibus princip. and Everardus loc. legal. num. 13. et 16. And though the correctory law of debtor and creditor, in 1661, is extended against apparent heirs buying in comprisings, yet that is to prevent fraud, and in causa maxime favorabili; but the Lords have been very nice in extending laws, as appears by the decision in Durie, 10th Dec. 1622, Rothes, voce Jurisdiction; and 21st July 1636, Grier, voce Superior and Vassal; and the same is likewise observable in the cases of annualrent due after denunciation, of declining Judges as well for affinity as consanguinity; of the third of the dead's part given to executors nominate, and not to executors dative; and of the nullity of tacks by the 15th act, 1621; none of which last four cases the Lords would extend de casu in casum. And whereas l. 3. D. ad leg. Pomp. de parricid. and l. 59. D. de R. Nupt. were cited to prove that laws are extended even in materia pænali; to the 1st, The extention is in odium et ob atrocitatem criminis parricidii; and in the 2d, There is no doubt but sub nomine liberorum venit nepos and is extended ad hæredem extraneum, because hæres et defunctus sunt una et eadem persona in jure. It is confessed a new Parliament might extend it to this case; but as it stands, the Lady is not in the case of that old act 1584.
It was pressed that the Lords would advise this cause; and the President, Tarbet, Carse, and the other lawyers on the bench, were clear for the Lady; but Dumbarton's favour got it delayed; and, in June, a new stop came from the King. All the Lady could procure, was, that the Lords decerned in her poinding of the ground for the years since the forfeiture. But, on a bill given in by Dumbarton, pretending that she was paid thereof, by intromission with her son's moveables, his library and the wood, &c. the Lords ordained her to find caution to refund, in case in the event she were found paid of these bygones resting since the doom of the forfeiture; and she found Sir Patrick Murray cautioner. They were content to take her oath on these intromissions, but refused to take it as to precedings; though it was contended that it was all she was obliged to do by the act of Parliament, to purge collusion betwixt her son and her for abstracting the discharges, unless they would prove it scripto.
Fountainhall, v. 1. p. 491. & 500.*** Harcarse reports the same case:
The Lady Salton being infeft in a yearly annualrent of 7000 merks, pursued a poinding of the ground for —— years annuities before her son's forfeiture.
Compearance was made for the Lord Dumbarton, as donatar of the forfeiture, for whom it was alleged, That by the act 2. Parl. 9. James VI. the King or his donatars are not bound to produce discharges of feu-duties or annualrents preceding the forfeiture.
Answered for the pursuer; That last clause in the said act doth only concern the forfeiture of inferior vassals, the words being, ‘That no person presented,’ &c. and presentation is not made to the forfeiture of immediate vassals; and the reason of the disparity is, because there is a greater presumption of fraud in a sub-vassal, who is a stranger to the King, than in his own immediate vassal.
Replied; The other provisions in the act anent the quinquennial possession, concern the King's vassals as well as others; and therefore the last concerning discharges should also be applied to lands holden immediately of the King. 2. The danger is as real in the one as the other. 3. The word presentation is to be taken in an ample sense (as appointed) as the words (feu-lands) in the act will be extended to ward or blench.
